The ramifications of Megan's Law for employers

Employee Relations Law Journal

Volumn 31, Issue 2, 2005, Pages 17-29

  Ongerth, Sharon E ^a  

^a Natl Labor and Employment Law Firm   (United States)

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EID: 41949124305     PISSN: 00988898     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (54)

1. 436 S.E.2d 272 (1993). The employee in this case had been charged with first degree sexual assault and first degree burglary and pled guilty to lesser charges three years prior to the incident. The employee had worked for this particular car dealership prior to his guilty plea. After his conviction, he worked for another car dealership for sometime before the defendant re-hired him. Id. When he was re-hired by the defendant, he filled out an insurance application in which he responded in the negative to the question: "Have you ever been convicted of a fraudulent or dishonest act?"
2. Id. at 274.
3. See 42 U.S.C. § 14071 (2003).
4. See id. For more general information on Megan's Law, see also, http://www.klaaskids.org/pg-legmeg.htm)(hereinafter klasskids.org) (last visited July 24, 2005).
5. For links to various state sex offender Web sites, see klasskids.org, supra.
6. See http://caag.state.ca.us/megan (last visited July 24, 2005).
7. See klasskids.org, supra (providing details regarding the background of Megan's Law and information regarding Megan's Law in each of the 50 states).
8. 27 Am. Jur. 2d Employment Relationship § 472.
9. See id.
10. The degree of inquiry required and what is considered to be a "reasonable" background check will vary depending on the specifics of the job position that the employer is considering for the applicant, see discussion infra.
11. 226 Cal. App. 3d 551 (1990), cause remanded by 4 Cal. Rptr. 2d. 453 (1991).
12. Id. at 596.
13. See, e.g., Reed v. Kelly, 37 S.W.3d 274, 278 (2001).
14. 27 Am. Jur. 2d Employment Relationships § 476.
15. See id.
16. See id.
17. 174 Cal. App. 3d 111 (1985) (overruled in part on other grounds by Lakin v. Watkins Assoc. Indust., 6 Cal. 4th 644 (Cal. 1993)).
18. See id. at 119.
19. See Munroe v. Universal Health Services, Inc., 596 S.E.2d. 604, 862 (Ga. 2004) (stating that "absent a causal connection between the employee's particular incompetency for the job and the injury sustained by the plaintiff, the defendant employer is not liable to the plaintiff for hiring an employee for that particular competency").
20. See also Coughlin v. Titus-Bean Graphics, 767 N.E.2d. 106, 111-115 (2002); Oakley v. Flor-Shin, Inc., 964 S.W.2d 438, 442 (1998); Evans v. Ohio State Univ., 680 N.E.2d 161, 171-174 (1996).
21. 988 P.2d 1031 (1999).
22. In fact, the employer had hired the employee prior to his arrest for sexual assault in Texas and actually arranged for the employee's bail to be posted after learning of the charges against him. As a result of the sexual assault charge the employee was required to participate in the Texas sex offender program. See id. at 1032.
23. Id. at 1034.
24. Id. at 1034.
25. Id. at 1033.
26. 59 Cal. App. 4th 1207.
27. Id. at 1211.
28. Id. at 1213-1214.
29. Id. at 1214 (emphasis in the original).
30. Id. at 1212.
31. Id. at 1215. Notably, the sexual assault occurred at the employee's home, which he rented from his employer, while the child was in the employee's care with the permission of the plaintiff. The court, however, gave minimal consideration to these facts when ruling on the case.
32. See id.
33. Id.
34. 868 P.2d 882 (1994).
35. See id. at 882-883.
36. Id. at 886-887.
37. Id. at 886.
38. See id. at 888 (stating that "[a]lthough [the employee's] job was not high paying, the circumstances of his employment put him in a position of responsibility. A jury might well conclude that it was reasonable for concert patrons to look upon [the employee] as one authorized to perform security functions, and that, therefore, [the employer] should have more extensively examined [the employee's] background before hiring him").
39. 895 So. 2d 1114 (2005).
40. See id. at 1116.
41. It was established that the manager knew of the co-worker's previous conviction because the co-worker's parole officer had contacted the manager. The court, however, did not address whether the co-worker's history as a sex offender was equally available to the plaintiff's mother pursuant to Megan's Law and the Florida sex offender Web site. See id.
42. Id. (emphasis added).
43. See id. at 1120, n.5.
44. These type of provisions played an important role in defending various states' incarnations of Megan's Law against claims for violations of the Ex Post Facto and Double Jeopardy clauses of the US Constitution. See, e.g., Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997) (finding New York's Megan's Law to be constitutional because its intended effect was regulatory and not punitive).
45. See, e.g., Mass. Gen. Laws ch. 6, § 178N (providing that any person who uses sex offender registry information to commit a crime against a sex offender or to illegally discriminate or to harass a sex offender is guilty of a misdemeanor and is subject to a fine or imprisonment); N. Y. Correct, Law § 168-q(2)(imposing fines on unauthorized use of sex offender registry information and authorizing attorney general, district attorney, or "any person aggrieved" to seek an injunction to prevent misuse of registry information).
46. Cal. Penal Code §§ 290.4(e)(2) and 290.46(j)(2) (both providing that "use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited: . . . (E) Employment . . . .").
47. Although employment contracts in California are generally terminable at-will by either the employer or employee, California courts recognize an exception to this rule based on Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167(1980), which provides that "[a]n employer's traditional broad authority to discharge an at-will employee may be limited by statute . . . or by considerations of public policy," Id. at 172.
48. See Cal. Penal Code §§ 290.4(e)(1) and 290.46(j)(1)(both stating that "[a] person is authorized to use information disclosed pursuant to this section only to protect a person at risk"). Section 290.4 relates to a "900" telephone number maintained by the state which provides sex offender registry information to callers, whereas section 290.46 relates to the state's Megan's Law Web site.
49. See Cal. Penal Code §§ 290.4(e)(3)(A) and 290.46(j)(4)(A)(both providing that "[a]ny use of information disclosed . . . for purposes other than those provided . . . or in violation . . . shall make the user liable for actual damages in any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damages, and not less than two hundred fifty dollars ($250) and attorney's fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000)").
50. See 42 U.S.C. § 12211(b)(1) (2002) (stating "the term 'disability' shall not include . . . pedophilia . . . or other sexual behavior disorders");
51. see also, e.g., Winston v. Maine Technical College, 631 A.2d 70 (Me. 1993).
52. Notably, the cases to date that specifically address the issue of sex offenders and negligent hiring/retention claims focus on the degree of contact between the employee and third parties. It is unclear what the result would be in a case where a registered sex offender employee attacks a co-worker or even where the registered sex offender merely sexually harasses a co-worker. See Burke Ctr. for MHMR v. Carr, 2004 Tex. App. LEXIS 11499 (2004) (reversing trial court's denial of jurisdiction, where employee, who claimed co-worker, a registered sex offender, sexually assaulted him, brought a claim under Texas Whistle-Blower Act against state employer because claim of negligence would not lie due to state's sovereign immunity).
53. See Am. Jur. Proof of Facts 3d § 17 (2004) (citing CC. v. Roadrunner Trucking, Inc., 823 F. Supp. 913 (D. Utah 1993) and Stanley v. Brooks, supra).
54. See, e.g., C.C., supra, at 923-924.